Zhang (Migration)

[2021] AATA 951

Zhang (Migration) [2021] AATA 951 (22 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rui Zhang

CASE NUMBER:  1715493

HOME AFFAIRS REFERENCE(S):          BCC2017/1012472

MEMBER:Penelope Hunter

DATE:22 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 February 2021 at 11:06am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – immigration history – length of time spent in Australia – infrequent return to home country – family ties in Australia – unsatisfactory academic progress – medical evidence – value of course to applicant’s future – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

   Application to the Department

5. The applicant is a citizen of China. She applied for the visa in order to undertake a program of study in a Master of Business Administration due for completion on 17 August 2018.

6. In support of her application the applicant  and  the applicant set out the following reason for her study (in summary):

   1. She had applied to the Universal Business School Sydney (UBSS) to undertake a Master of Business Administration. She chose the course because it provided the advantage of developing a wide range of general business knowledge and a broad base of technical skills in a relatively short period of time. It would also further her knowledge and skills for career development and quality assurance in China.
   2. She chose to study at UBSS as it provided an entrepreneur stream of subjects giving her the confidence to pursue her further career in China. She chose to study in Australia because Australia is home to some of the world’s leading universities and Australian studies are well known and it was a fantastic place to live.
   3. In China, most of the leading business organisations prefer to hire those who have a Master of Business Administration degree for higher management positions. After the completion of the Master of Accounting she wished to make her career enhancement stronger and open more opportunities to advance in the business world in China. Her proposed course could help her quickly climb up the corporate ladder.
   4. After the completion of her studies in Australia she would go back to China and she would like to work for a reputed enterprise organisations, and she would try to run her own business in China. By earning a Master of Business Administration she could increase her practical knowledge in the field of business administration and after the completion of the qualification she was sure she would get her dream to job in China and work where she wanted.

7. The delegate in their decision, a copy of which the applicant has submitted to the Tribunal, set out the following reasons for refusal of the visa:

   i.The migration history of the applicant was of concern the delegate. She was granted her initial student visa offshore to study intensive English and senior high school. The applicant arrived in Australia on 21 October 2002. Since the applicant’s initial arrival onshore she had been granted a further eight student visas, all subclass 573 (higher education) and the last visa was a subclass 572 (vocational sector). The applicant had been residing in Australia for over 15 years holding either a student visa or associating bridging visa. In that time the applicant had only departed Australia for short periods on eight occasions. The application under review would extend the applicant’s length of stay in Australia on temporary visas for the purposes of full-time study to over 17 years.

   ii.The Provider Registration International Student Management System (PRISMS) records indicated that the applicant had studied and completed a course in English, senior high school, Diploma of Business, Diploma of Interpreting, Advanced Diploma of Translating, Bachelor of Business and Commerce, and Master of Accounting.

   iii.While residing in Australia for over 15 years the applicant had not provided any details of previous or current employment that were relevant to her studies or future career goals. Given the time that the applicant had already spent in, and minimal time outside of Australia, the applicant appeared to have enrolled in her courses for the purpose of securing a further student visa and prolonging her stay in Australia rather than any genuine interest in study to benefit her career outside Australia.

   iv.The applicant not stated when she intended to return home. The delegate gave the applicant’s claim regarding her long-term intensions little weight as she had not provided any details how her long-term goals of operating a business and working in the business world in China would be achieved.

   Tribunal application

8. The Tribunal received an application for review from the applicant on 18 July 2017.

9. In response to a request for information pursuant to s. 359(2) of the Act, on 21 January 2019, the Tribunal received a further statement in support from the applicant. This set out the following further relevant information (in summary):

   i.The applicant and her family had sound financial resources to support her study in Australia. The applicant had two properties in Shenzhen China (given to her by her late father) and her mother had sufficient savings to support her. The applicant provided a property certificate and deposit certificate for her mother’s account.

   ii.Her study of the MBA was linked to her last qualification, the Master of Accounting. An MBA can help her future career, she can learn more about management in industry and organisation, and how to understand high level management needs. The study of the MBA could make her become a compound talent, more competitive in career development. In the job market the majority of young professionals in China possess a master degree and some management jobs require more than one master degree.

   iii.She is from Shenzhen, the youngest and biggest in high tech city China with a population of more than 20 million. It was a fast developing country with many jobs/career developments. She had two uncles, two aunts, and two cousins in China and who were all doing well in business and would offer her positions when she returned.

   iv.She was not an A-level student but definitely a genuine students. She is struggle with some subjects in the past but she had the confidence complete her course by the end of 2019. The applicant submitted an academic transcript issued 28 April 2018, and Academic Progress Statement. The applicant was enrolled in 16 subjects for the MBA program and successfully completed 11 subjects including 8 subjects for which she received credit. The commencement date was 8 May 2017 and enrolment ceased on 17 August 2018.

10. On 26 February 2019, the Tribunal received an updated CoE of the applicant, for enrolment in the MBA at UBSS with course dates from 21 January 2019 to 23 August 2019.

11. On 11 March 2019, the Tribunal received further material including a statement from the applicant and medical documents. The applicant claimed that the reason she had not been back to China for a long time was because she had medical issues requiring constant treatment in Australia and she suffers from depression every time she goes back as her family try to match her up and force her to marry.

12. The applicant was invited to attend a hearing on 11 March 2019 to give evidence and present arguments. The applicant’s representative was also present at the hearing. At the hearing the applicant presented the following relevant information (in summary):

    i.The applicant was asked what type of industry she would be looking to work in once she had finished her MBA and she said she would target the Chinese 500 companies, and in particular the Chinese Midwest Bank.

    ii.The applicant was asked she had any work experience in Australia and she claimed that she had tried but it was hard because she was studying and people did not want her while she was on a student visa. The applicant said that she had applied for positions in China. Her mother had previously worked for a bank in Shenzhen and she wanted to go back to work there.

    iii.She planned to go back to China after she completed her MBA. She also had two cousins who do a bubble tea small business in China and in the long term would use her knowledge to do a similar business. She claimed that there were more opportunities available for her in China in the future.

    iv.The  applicant was asked when she had last visited China and she claimed that it was in 2012. Her family in China consisted of two uncles and several cousins.  The last year she was there they tried to put her on to online dating, at her age they think she should have a family, and because they are family she cannot say no. She was very scared every time they ask her back to China for this reason and wanted to focus on her study. She still kept in contact with some of her high school friends though social media. Her mother lived in Australia, although the applicant did not live with her. The applicant did not have an property in Australia.

    v.The Tribunal discussed with the applicant her studies in the MBA and asked her to explain her further enrolment. The applicant said that she suffered from migraine headaches the previous year and this was due to low iron. The applicant underwent tests and was prescribed migraine tablets. She also had investigations for knee pain. The applicant was asked whether her migraines or knee pain would extend further the time she required to finish her course, and she replied that her migraines can happen suddenly but she thought she would soon be up to finishing her course.  

13. On 27 May 2020, the Tribunal received a further CoE for the applicant at Group Colleges Australia in a Master of  Business Administration with course dates from 14 May 2020 to 21 August 2020.

14. The initial member allocated the application for review was unable to finalise the matter and the application for review was reconstituted on 31 July 2020 to a different member. The applicant was advised that all documents and material that were submitted to the Tribunal would be considered in relation to the review, including any recording of hearing and submissions to the Tribunal or the Department.

15. On 3 September 2020,  the applicant submitted to the Tribunal a CoE created on 3 September 2020 for enrolment with Velocity Education & Training in an Advanced Diploma of Translating with course dates from 5 October 2020 to 3 October 2021.

16. On 22 September 2020, the applicant provided to the Tribunal further submissions including a statement of completion of the MBA issued 21 August 2020, email regarding a graduation ceremony on 20 May 2021, a medical certificate setting out that the applicant was unable to attend work from 17 November 2020 to 1 December 2020 due to her mother undergoing surgery, and certificate of relationship (and translation), and a personal statement. In her statement the applicant set out the following further relevant information (in summary):

    i.She had finally completed her MBA in August 2020 and wished to attend the graduation ceremony being held at the Opera House on 21 May 2021. Attending the ceremony was the most important moment in her lifetime. She wished to attend the ceremony while studying another short valuable course, the Advanced Diploma of Translating.

    ii.She was not an A level student but a genuine student. She was supposed to complete her MBA by the end of 2019 and return to China to get a job with a big corporation to gain some experience before she tried to establish a business, but she failed the last subject of her MBA degree in 2019. He school extended her enrolment by one semester. Due to the pandemic she had to study her last subject online.

    iii.She was planning to go back to China after the completion of her MBA but the situation has changed dramatically due to COVID-19. All big and small firms have started to cut staff and many businesses had closed. She had tried to send her resume out after she had completed her MBA. Mostly she received no response and some advised that they would not consider a new employee this year.

    iv.Meanwhile her mother who is an Australian permanent resident became sick and she needed the applicant to look after her until she recovers.

    v.She will return to China once she had completed her last qualification by next year and she believed that the pandemic will be finished. By then she would be fully equipped with all necessary knowledge and skill to enter the job market and become more competitive with her bilingual qualification and skill.

17. The applicant was again invited to appear before the Tribunal on 23 September 2020 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The representative of the applicant also attended the hearing by telephone. At the hearing the Tribunal discussed with the applicant the following further relevant information (in summary):

    i.The Tribunal raised with the applicant that according to her initial enrolment her course was to be completed on 18 August 2018, when in fact she actually completed the course on in August 2020, and asked for her to comment on this slow rate of progress. The applicant said she commenced her enrolment in July 2017 and she had continued to study all the time, but she was late for one semester because there was not space for her to study. The Tribunal then raised with the applicant that she only had received academic credit for 8 subjects, only had 4 subjects to complete in March 2019 and she was asked to explain why it took her until August 2020 to complete 4 subjects. The applicant said that she was sick and it was hard to work sometimes, and she was late and missed enrolment in one semester. The Tribunal then raised with the applicant that pursuant to her course information there were potentially 5 semesters that she could have completed her outstanding courses in. The applicant responded that she had failed one subject in second semester.

    ii.The Tribunal asked the applicant to explain her sickness and how this made it hard for her to work, and in response the applicant said that she had knee pain and this made it hard for her to walk upstairs sometimes. She confirmed that her course had switched to online studies in 2020. The Tribunal asked whether this had been the case for at least two semesters, and the applicant said in the beginning it was uncomfortable doing study online and she was confused. The Tribunal referred to the scans that the applicant had submitted of her knee and when asked what was wrong with her knee the applicant said that she felt uncomfortable when walking sometimes. The Tribunal discussed with the applicant the medical evidence submitted and acknowledged that there was evidence of testing and scans, however it did not appear that the material demonstrated that she was incapable of study for significant periods. Following a request, the applicant was granted a leave to submit further medical evidence by 7 October 2020.

    iii.The Tribunal asked the applicant about her further enrolment and asked why she chose to study the course, and she said she would have a more concrete advantage when she had the opportunity to apply for a job in China. She claimed it would demonstrate that she had good communication skills.

    iv.Pursuant to the provisions of s.359AA of the Act the Tribunal put to the applicant information contained in her PRISMS record. The relevant information was that she had previously been enrolled in a Diploma of Interpreting from 14 December 2015 to 20 May 2016, and then she was enrolled in an Advanced Diploma of Translating from 27 June 2016 to 13 November 2016. The applicant was informed that the information was relevant because if the Tribunal relied on the information it appeared that she had already enrolled and completed a course of study similar to that which she was currently proposing, which would cause the Tribunal to question the value of the course and whether she had enrolled in the subject for the purposes of maintaining residence in Australia. The applicant elected to respond immediately and claimed that although she had studied the course previously she failed one subject and did not get the qualification. The Tribunal then questioned whether she received course credit and whether it was necessary to study the course for a full twelve months again. In response the applicant said that her previous college was not available for her to re-enrol. The applicant then said that she had applied for a credit transfer, when the Tribunal challenged this evidence she said that she had not applied for a credit transfer yet but she just wanted to finish this course and make a happy ending.

    v.Her mother was living with her stepfather in Australia. Since November 2019, she needed the applicant to assist her with her medical condition. The applicant said that her stepfather was not able to assist because he was not very sensitive and he had diabetes. She claimed that sometimes an ambulance may be needed to be called during the night. The applicant also gave evidence that she was not living with her mother in Bayview but in separate premises in Westmead.

    vi.She currently had a part-time job at a storage accessory business in Penrith. In the role she was doing customer service, phone enquiries and chasing payments. She had worked there for approximately three years.

    vii.The Tribunal put to the applicant concerns about the length of time, 18 years that she had spent in Australia on various student visas and now she was seeking further study. In reply the applicant said her family sent her to Australia to study because she needed qualifications, in August 2020 she had finished her MBA and when she emailed her college to request the qualification they said that she needed to attend the graduation ceremony the following year and she needed this last qualification. When asked whether she had attended any of her other graduation ceremonies the applicant said only the one for her bachelor degree. As the MBA was her highest qualification it was important for her to attend. She could not return to China and come back for it because the travel was expensive and her mother needed her to help out.

    viii.The Tribunal again raised with the applicant information contained in her PRISMS records pursuant to the provisions of s.359AA of the Act. The relevant information was that in the 18 years she had been onshore she had enrolled in over 20 courses, a number were re-enrolments such as with the Bachelor of Business where she appeared to varied her enrolment 6 or 7 times and she took 7 years to complete the qualification. Additionally she had approximately 7 enrolments issued for her MBA. The applicant was advised that the reason that it was important was because the constant extension of her courses and re-enrolments could be considered to be not consistent with the pattern of a genuine student and it appeared that she was using the student visa system as a means of extending her time onshore. The applicant did not seek additional time and elected to comment immediately and said that she was not an A level student but definitely a genuine student. She said was supposed complete the MBA in 2019 to get a job with a big corporation to get experience before she started a business but at the moment she could not fly. The applicant repeated that she had to extend her studies in the MBA for an extra semester at the end of 2019, and then Covid-19 happened and she struggled with studies online. The Tribunal noted that the applicant was able to complete some of her qualifications, such as her Masters of Accounting within the time allocated. 

    ix.She had tried to get a job in China, she claimed to have applied for a bridging visa to return to China, to talk with her cousins about her proposed future business, a bubble tea business.

    x.In China she had property that she had inherited from her father, it was currently rented. Her mother also owned two properties.

    xi.The representative for the applicant made submissions that the applicant while not an A-level student had completed all courses that she had enrolled in. The Tribunal challenged whether this evidence was consistent with that provided by the applicant. The Tribunal again put the applicant information contained in her PRISMS records pursuant to the provisions of s.359AA of the Act. The relevant information was that not only had she not completed her MBA within the initial time allocated by her education provider but it is recorded on two occasions that her enrolment was cancelled for non-payment of fees. The applicant was advised that the reason that it was important was because the non-payment of was also a factor not consistent with the pattern of a genuine student and who was seeking the award of the qualification rather than just extending her time onshore. The applicant did not seek additional time and commented immediately that the school required her to pay before the census dated for withdrawal from the course without penalty and even if she paid on that date, which she claimed that she did, they still cancelled her enrolment and she had to have new one issued.

1. On 2 October 2020, the Tribunal received further submissions from the representative for the applicant which included the following:

   i.       Undated medical certificate of Dr Shuhana Perveen reporting that the applicant has recurrent knee pain with osteoarthritic changes diagnosed in 2017, and  that she has iron deficiency anaemia diagnosed in 2018 which could affect academic performance.

   ii.Statutory declaration of the applicant dated 29 May 2019 in which she is seeking an extension of her CoE due to failure of a subject.

   iii.Statutory declaration of the applicant dated 16 September 2019 in which she is seeking and extension of her CoE due to the class quote being full.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfies cl.500.212 of Schedule 2 to the Act.

3. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

4. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

5. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

6. Considering the applicant’s circumstances in her home country, the Tribunal also accepts that the applicant has inherited property in China and her mother is the owner of property in China. There is no evidence before the Tribunal of economic circumstances that would act as a considerable incentive for the applicant not to return. Additionally, the Tribunal accepts that there are no incidents of civil or political disturbance that would induce the applicant to apply for the visa for the purpose of remaining in Australia indefinitely. There is also no evidence that the applicant has any military service commitments that would present a significant incentive for the applicant not to return.  If the focus of the applicant’s Advanced Diploma of Translating in English translating then the applicant has reasonable reasons for wanting to undertake this study in an English language country such as Australia. It is accepted that these factors are generally favourable to the applicant being considered a temporary entrant.

7. The extent of the applicant’s personal ties to her home country includes her extended family, including her uncles and two cousins. The applicant also claims, and the Tribunal accepts that she has remained in contact with some of her school friends. While the family and social ties may provide an incentive for her retune, the Tribunal has also balanced this with the evidence of the applicant provided at the Tribunal hearing in 2019 and in her pre-hearing submissions, that she was under pressure from her family in China to marry and that she wished to avoid that pressure.  While the Tribunal accepts that the applicant wishes to remain in contact with her family and friends in China, given the extensive time she has spent in Australia and her infrequent visits to her home country, it is not persuaded that these circumstances serve as a significant incentive for her to return to China to reside permanently.

8. As to the applicant’s circumstances in Australia, the evidence is that she has her most immediate family members, her mother and step-father, who are Australian residents. The applicant clearly considered that she had had responsibility to be present in Australia to assist her mother to manage her ongoing health issues. At the hearing in September 2020, the applicant claimed to have been employed for the last 3 years in storage business. The Tribunal has difficulty reconciling this with the applicant’s previous evidence at her hearing in March 2019 that she was unable to find work as an international student, and considers this does raise questions about her reliability as a witness. It is accepted that there is no evidence that the applicant has entered into a relationship of concern. However, overall the applicant’s circumstances onshore, and in particular her long period of residence in Australia, of over 18 years suggests that she may have motivations to remain in Australia other than for the purposes of study.  

9. The Tribunal accepts that the applicant completed her MBA in August 2020, and while the applicant claimed to have chosen the course as it allowed her to complete the qualification is a relatively short period of time, the applicant in actuality required a multiple further enrolments and an additional two years. At the time of the visa application, the applicant’s enrolment had provided for completion to take place over 4 semesters by August 2018. The academic transcript submitted by the applicant records that the applicant had obtained course credit for 8 units, half of her study load. By February 2019 the applicant had completed 7 and passed 4 subjects. She required a further 5 semesters of study, and an additional two years to complete approximately 4 subjects. This is an extraordinarily slow rate of progress. The Tribunal has considered the various excuses offered by the applicant particularly that enrolment was full for one of her subjects, that she struggled with online learning and it is not persuaded that it satisfactorily accounts for the delay. It is noted that the applicant was able to complete her Master of Accounting within the allocated time, this is also high level study. The Tribunal has also considered carefully the medical evidence submitted by the applicant that she had knee pain with osteoarthritic change and low iron, the Tribunal is not persuaded that these conditions, which were treated by her practitioner with medication, can also satisfactorily explain the persistent delay in the applicant concluding her course. The Tribunal also notes that the applicant has varied her evidence on the impact of her conditions, at the hearing in 2019 she claimed it was migraines associated with low iron that delayed her study, at the hearing in 2020 she claimed that it was her knee pain. The medical certificate of Dr Perveen is considerably brief, undated and does not address how the applicant’s conditions affect her performance, whether or not the applicant suffered from migraines, or whether her conditions responded to treatment. The Tribunal is not persuaded that this evidence can been attributed great weight is explaining why the applicant required more than twice the amount of time for the 8 subjects required for the award of her MBA. In addition to extended enrolments due to the applicant’s failure to complete her course on time, as discussed with the applicant at the hearing her PRISMS records also record that the applicant’s enrolment was cancelled on two occasions due to non-payment of fees. The applicant had attributed this to paying on or close to the census date rather than the due date for payment as required by her institution. While it is accepted that the applicant ultimately paid her fees and had her enrolment reinstated, it is also considered that if she was genuine in her commitment to her study she would be attending to the payment of fees on time. The applicant’s delay in finalising this qualification is considered not to be reflective of the conduct of a genuine student and also indicates to the Tribunal that the applicant is using the student visa programme as a means of maintaining residence in Australia.

10. It is considered that the proposed Advanced Diploma of Translating in which the applicant has obtained further enrolment is not consistent with her past level of study. She has two previous qualifications at the masters level, it is a regression in her qualifications. Additionally, the Tribunal considers that it is of questionable value given that the applicant has already undertaken and completed study in a Diploma of Interpreting and an Advanced Diploma of Translating in 2016. Even if the Tribunal accepts the evidence of the applicant that she failed one subject in one of these qualifications, it is not satisfied that she was required to complete the entire qualification again. There are considerable concerns that she had not sought any credit or advanced standing for her prior study, given that she demonstrated that she has obtained this in the past with her MBA studies. Furthermore, because that applicant did not bother to re-enrol and complete her final subject in the first instance and obtain the award of the qualification in 2016, the Tribunal questions whether the course is actually of any value to her. When the Tribunal also considers the applicant’s demonstrated rate of progress with her MBA, it is not confident that the applicant will complete the qualification within a timely manner in the period allowed and there is the likelihood of her seeking further extensions of the visa.

11. The Tribunal has also considered the relevance of the proposed course to the applicant’s future employment and was not satisfied that the Advanced Diploma of Translating in her particular circumstances would assist her to obtain employment or improve her remuneration prospects. The applicant intends to get some work experience in one of the top Chinese 500 companies, and has identified the banking sector, then she will proceed become a businesswoman and operate her own bubble tea business. As the applicant already has the benefit of living in an English speaking country for over 18 years and considering she has two masters qualifications obtained in English, the Tribunal is not satisfied that she would need to demonstrate further to an employer that she has competent English skills. Nor that as the owner of a bubble tea business translating qualifications were required. Again by enrolling in a course that she had already substantially completed in the past the applicant appears to be delaying her time onshore and demonstrating that she is using the student visa program as a means of maintaining residence.

12. With respect to the immigration history of the applicant it is accepted that there is no evidence that the applicant has previously applied for a permanent visa, and there is no evidence that she has not complied with conditions of her previous visas. However the extraordinary amount of time that the applicant has spent onshore since 2002, her entire adult life, is of concern for the Tribunal. Particularly when combined with infrequent return to her home country, her slow rate of academic progress and persistent extension of her course duration, and her current intention of undertaking another course similar to that she had already completed. This length of time onshore and the lack of any impetus for the applicant to depart further demonstrates to the Tribunal that the applicant is using the student visa program as a means of maintaining ongoing residence. 

13. As to other matters, the Tribunal has concerns that the applicant does not appear to have genuinely sought any employment in her home country consistent with her stated aims proximate to the time she completed her MBA in August 2020. Although she claimed in 2019 to have made some enquiries, there is no evidence to support this. Her subsequent evidence to the Tribunal was that she had engaged in discussions with her cousins about a bubble tea business. Instead of pursuing career opportunities in China it appears she immediately obtained enrolment in another 12 months course. The Tribunal is not satisfied that the applicant was required to remain onshore in order to attend a graduation ceremony 9 months later. As she did not attend the graduation ceremony for the award of her Master of Accounting degree, it is not satisfied that the graduation ceremony for the MBA, in which her academic record demonstrates her lack of engagement, is the most important moment in her lifetime. The applicant had evidence of the completion of the qualification which she had provided to the Tribunal.

14. The Tribunal has assessed all of the evidence before it including that the applicant has property and family in China, that she has completed her MBA and holds another master and bachelor qualification which may be favourable to finding employment or opening a business in China. Yet in balancing the relevant factors the Tribunal places greater weight on the applicant’s previous immigration history including the length of time she has spent and proposes under this visa to spend onshore, her unsatisfactory study history,  her family ties in Australia, concerns about her further enrolment, and the lack of demonstrated value of her course to her proposed future career. For the reasons outlined above it does not accept she is undertaking her study for the reasons she claims. Rather it appeared that she was using the student visa program to circumvent the intentions of the migration program and to maintain residence in Australia.

15. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

16. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Penelope Hunter
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.